MARBURY L AW GROUP, P L L C, Plaintiff/Count er- Def

endant,

v. BERNA RD J . CARL , Def endant/Counter- Plaintiff.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil No. 09-1402 (CKK)

MEMORAN DUM OP INION (Jul y 27, 2010) Plaintiff/Count er- Def

endant Ma

rbury L aw Gr oup, PL L C, (“Mar bury”) f iled the above

captioned a ction seekingto reg ister a moneta ry judgme nt entere d by

the Fa irfax County

Circuit Court in favor of

Marbur y and ag ainst Defe ndant/Counter-Plaintiff B erna rd J. C arl in the amount of $135,324.07, for

leg al fe es and c osts owed. Carl in turn filed a Counterclaim ag ainst Marbury , asser ting c laims for bre ach of

contra ct, leg al malpra ctice, a nd brea ch of f

iduciary duty alleg edly arisingfrom Mar

bury ’s leg al re prese ntation of Carl. Shortly there afte r, Mar

bury conclude d, based upon subsequent re sear ch, that this Court was not the prope r for um in which to reg ister the F airfax County Circuit Court judgment and the ref ore f iled a motion to dism iss its own Complaint for lack of subject matter

jurisdiction. Concurrent with that motion, Marbury also filed a motion to dismiss Carl’s Counterc laim as barr ed by res judicata and f

or fa ilure to state a c laim. Carl failed to timely file a r esponse to either

motion. By

Memorandum Opinion and O rder dated De cembe r 3, 2009, the Court there fore g rante d as conc eded Ma rbury ’s motions to di smiss and dismi ssed this action without prejudice.This matter now c omes befor e the Court on Carl’ s Motion to R econside r and V acate this

Court’s Dec ember

3, 2009 Orde r (“ Motion for Reconsider ation”). A s set forth ther ein, Carl asks the Court to rec onsider its final orde r dismissing this action without prejudice a nd g ranting Marbur y ’s motions to di smiss as concede d. Marbur y has not direc tly

opposed the Motion for Reconsider ation, instead re iteratingits subst antive position that dismi ssal of this action is appropr iate for

the re asons asser

ted in its original motions to dismi ss. The Court has thoroughly considere d the par

ties’ brief ing, the rele vant ca se law, a nd the re cord of

this case a s a whole. F or the re asons set for

th below, the Court shall GRANT Car l’s [11] Motion for Reconsider ation and shall theref

ore V ACATE its Dece mber 3, 2009 Memor andum Opinion and Or der granting Marbur y ’s motions to di smiss as concede d. Turningthen to consider the substantive arg uments raised by Marbur y in its m otions to di smiss, t he Court agree s that it lacks jurisdiction to reg ister the Fa irfax County

Circuit Court’s judgment. The Court theref ore c annot and doe s not reac h the merits of Mar

bury ’s substantive claim for enfor ceme nt of the F airfax County Circuit Court’s monetary judgme nt here in. Rather, as this is the sole re lief sought in Marbury ’s Complaint, the Court shall GRANT Marbur y ’s [12] Motion to Dism iss its own Complaint for lack of subject matter jurisdiction pursuant to F eder al Rule of Civil P roce dure 12( b)(1) . All that remains, then, is Carl’s state- law cla ims as asserte d in his Count erc laim. Howeve r, the Court’s jurisdiction to enter tain such cla ims is unclear on the pr esent re cord. A lthough the ple ading s indicate that Car l and Mar bury have dive rsity

of citizenship, Carl has failed to plea d any amount in controver sy . Notwithstanding that neither pa rty has direc tly

raised this issue, the Court has a n aff irmative duty to ensure that it is actingwithin its jurisdictional authority . I t theref ore sha ll HOL D I

N

2AB EYANCE Mar bury ’s [13] Motion to Dism iss Carl’s Counterclaim pendingfurther briefingon and re solution of this threshold jurisdictional question. I. BACKG ROUND Marbur y filed the Complaint in the above- captioned matter on Jul y 28, 2009, seekingto enfor ce a monetary judgme nt entere d by

the Fa irfax County

Circuit Court in favor of Ma rbury and ag ainst Carl in the amount of $135,324.07, for unpaid leg al fe es and c osts. SeeComplaint, Docket No. [1] . On Octobe r 15, 2009, Carl, re prese nting himself pro se , filed an Answer a nd Counterclaim to Marbur

y ’s Complaint. See Ans. & Counterclaim, Doc ket Nos. [6] & [7]. As set forth ther ein, Carl asse rts claims for br eac h of contra ct, leg al malpra ctice, a nd brea ch of f

iduciary duty ag ainst Marbury

based upon Ma

rbury ’s leg al re prese ntation of Carl in two separ ate c ivil matters, which a

re the same leg al ac tions that underlie Marbur y ’s judg ment for unpa id leg al fe es and costs. See ge nerally id

. On Novembe r 2, 2009, Mar bury filed a Motion to Dismiss i ts own Complaint for a lack of subject matter jur isdiction. SeePl.’s MTD Compl ., Docke t No. [12] . Marbur y advised the Court that “[s] ubsequent re sear ch has c aused c ounsel to conclude that while this Court must g ive full faith and c redit to the judg ment of the Circuit Court of F airfax County , Virg inia . . ., subject matter jurisdiction is l acking

for this Court to reg ister and e nforc e the judg ment enter ed ag ainst Carl, which must be re g istered a nd enfor ced in the Super ior Court for the D istrict of Columbia.” See id. at 1-2. In addition, concur rent with the filingof the Motion to Dismiss its own Compl aint, 1

Pursuant to this conclusion, Marbury re- filed its complaint in the Superior Court for the 1 District of Columbia on November 18, 2009. See The Marbury Law Group, PLLC v. Carl , 2009 CA 008631 F. The public docket in that ca se indicate s that the monetary judgme nt was reg istered on that same day

. See id. 3Marbur

y also filed a Motion to Dismiss Defenda nt’s Counterclaim base d upon the principles of claim pre clusion and re s judicata a nd for f ailure to state a

claim. SeePl.’s MTD Countercl., Docke t No. [13]

. On Novembe r 9, 2009, cognizant of Carl’s pro sestatus, the Court issued an Orde r advisingCarl that his responses to Mar bury ’s motions to di smiss were due by no later tha

n November

30, 2009, and that fa ilure to timely respond would r esult in the Court treatingthe motions as concede d and dismissing the a ction in its entirety

. SeeNov. 9, 2009 Orde r, Doc ket No. [14] . On Dec ember

3, 2009, havingrec eived no r esponse f rom Carl by

the Novembe r 30, 2009 deadline, the Court gr anted Ma rbury ’s motions as conce ded and dismissed the a ction without prejudice

. SeeDec . 3, 2009 Memorandum Opinion and O rder , Docke t Nos. [15] & [16]. On Dec ember

11, 2009, Carl filed the now -pendingMotion for Reconsider ation, seeMot. for Rec onsideration, Doc ket No. [17] , which he supple mented with additional filing s on Dec ember 16, 2009, seePl.’s Supp. M em. in Support of Mot. for Reconside ration, Doc ket No. [20] , and ag ain on Dec ember

17, 2009, see Pl.’s Response to Court Order, D ocket No. [21]. As set forth there in, Carl aver s that he timely prepa red a consolidated opposition to Marbury ’s motions, which he ca ptioned “Memora

ndum in Response to Court’s Order of Nove mber 9, 2009,” and provide d the filingto his administ rative a ssistant on November 30, 2009, with instructions to file the orig inal with the Clerk of this Court and to serve copies on Mar bury by mail. SeePl.’s Response to Court Order, E x . 1 (De clar ation of B erna rd J. C arl) ( “Carl De cl.”) , ¶¶ 5- 7. Carl’s administrative assistant, Eliz abeth Strom, confir ms that she persona lly

delivere d a copy

of Carl’s f

iling to a profe ssional courier

service on November

30, 2009, for f

iling with this Court. SeePl.’s Mot. for Reconsider ation, Ex . D (De clar ation of Elizabeth Strom) (“Strom Dec l.”), ¶¶ 2-3. Strom further

4asser

ts that she rec eived c onfirmation that same da y from the c ourier se rvice that the document had bee n acc epted f

or filing

. Id. ¶ 4. I t has since be come c lear , howeve r, that the c ourier se rvice 2 mistakenly

delivere d the pleadingto the Superior Court for the District of Columbia rather than to this Court, a fact whic h Carl did not become a war e of until afte r the Court had grante d Marbur y ’s motions as concede d. SeeCarl Dec l. ¶¶ 16-22. Car l promptly filed the now- pendingMotion for Reconsider ation, with his proposed opposition briefingattache d, and advise d the Court of the filing e rror . By Orde r date d Dec ember

15, 2009, the Court direc ted Marbur y to file a re sponse to Carl’s Motion for Reconsider ation by no later tha

n J anuar y 4, 2010, and provide d that Carl’s re ply , if any , was due by

no later tha

n J anuar y 14, 2010. SeeDec . 15, 2009 Orde r, Doc ket No. [19]

. Pursuant to that Order , Marbur y timely filed its Response to Defe ndant’s Motion for Reconsider ation. SeeDocke t No. [23] . As set forth ther ein, Marbur y does not oppose Carl’ s reque st for re consideration as it urge s that dismis sal of this action is appropr iate eve n if the motions t o dismiss are considere d on their merits rather than a s conce ded. See id. at 1-2. Mar bury has there fore filed re plies in support of its mot ions to dism iss that respond to the substantive arguments raised in Mar

bury ’s opposition attached to his Motion for Reconside ration. See id. , Att. 1 (Pl.’s Reply

Mem. in Support of MTD Def .’s Countercl.) ; see also Reply Mem. in Support of MTD Compl., Docket No. [22] . Carl has since filed a Reply in Support of his Moti on for Reconsider ation. S eeDocke t No. [24] . Br iefingon the Motion for Reconside ration as we ll as on

Strom has also confirme d that she mailed c opies of the doc ument to Marbury at the 2 addre sses ref

lected on the cer

tificate of service , id. ¶ 5, and Ma

rbury has ac knowledg ed that it rec eived the f

iling by first-cla ss mail on Dece mber 1, 2009, seePl.’s Resp. to Def.’s Mot. for Reconsider ation, Docke t No. [23] , at 1. 5Marbur

y ’s Motion to Dismi ss its own Com plaint and Motion to Dismi ss Defe ndant’s Counterclaim is now complete

. Notwithstanding this fa ct, on J anuar y 13, 2010, Carl filed a

Memorandum in Response to Plaintiff’s Reply

Memorandum in Support of Motion for Voluntar y Dismissal of Compl aint. See Docke t No. [25] , (her einaf ter, “ Def .’s Surreply

to Pl.’s MTD Compl.”). Althoug h captioned a “Memora ndum in Response,” the filingis properly char acte rized as a surr eply . I t is well established that bef

ore a party may file surreply , he must move the Court for le ave to f ile. Longwood Vil lage Restaurant, Ltd. v. Ashcroft , 157 F. Supp. 2d 61, 68, n. 3 (D.D .C. 2001). In addition, a surre ply

is lim ited to addre ssing only new a rguments raised f

or the fir st tim e by

the opposing pa

rty in their reply

briefingand not included in the or igina l motion. Id. In this case, Carl did not seek prior

leave of the Court to file the surr eply , and it is readily appar ent upon re view that the submission i s not lim ited to new ar guments raised by Marbur y in Reply but rather addre sses arguments alrea dy discussed by

the par ties. As such, Carl’s [25] Memorandum in Response to Plaintiff’s Reply Memorandum in Support of Motion for Voluntar y Dismissal of Complaint shall be STR I CKEN from the r ecor d in this case.

II. LEGAL STANDARDS AND DISCUSSION A. Motion for Reconsideration of Court’s Dece mber 3, 2009 Orde r Carl moves this Court to reconsider and vac ate its Dec ember 3, 2009 decision dismissing this action without prejudice. Courts treat such motions for rec onsideration as a Fe dera l Rule of Civil Procedur e 59(e ) motion if filed within 28 day s of entry of the c halleng ed orde r and a s a Rule 60(b) motion if filed ther eaf ter. See U

nited States v. Pollard , 290 F. Supp. 2d 153, 156 (D.D .C. 2003) (inter

nal quotations omitt ed). In this case, Car l’s Motion was filed on De cembe r 11, 2009,
6only

eig ht day s after

the cha lleng ed Or der w as issued on De cembe r 3, 2009. Ac cording ly , the Motion is properly

construed a s a motion to alter or amend a judg ment pursuant to Rule 59(e) . I t is well established that “‘ [a] Rule 59(e) motion is discretionar y and nee d not be g rante d unless the district court finds that there is an intervening chang e of c ontrolling law , the ava ilability of new evidenc e, or the need to c orre ct a c lear err or or pr event manif

est injustice.’” Cirals ky v . CIA , 355 F.3d 661, 671 ( D.C. Cir. 2004) (quoting Firestone v. Fire stone, 76 F.3d 1205, 1208 ( D.C. Cir. 1996)). The undisputed evidenc e in this case indicates that: Carl timely prepa red a nd attempted to file an opposition to Marbury ’s motions to di smiss on November 30, 2009, as r equire d; the opposition was mist akenly delivere d to the Superior Court of the D istrict Columbia through no appar ent fa

ult of Carl’s; Carl soug ht to remedy this error a s soon as it came to his attention; and Marbur y does not oppose Carl’ s reque st for re consideration. Accor dingly , the Court finds, in its discretion, that re considera tion of its prior Dece mber 3, 2009 Memor andum Opinion and Or der is

nece ssary in order to pr event a

manifest injustice and sha ll therefor e GRANT Ca rl’s [11] Motion for Rec onsideration and V ACATE its Dece mber 3, 2009 Memor andum Opinion and Or der g rantingMarbur

y ’s motions to di smiss as concede d. As the par ties have f

ully briefe d Marbur

y ’s motions t o dismiss , the Court shall turn next t o consider Ma rbury ’s [12] Motion to Dism iss its own Complaint and [13] Motion to Dism iss Carl’s Counterclaim. B. Marbury’s Complaint Must be Dismissed for Lack of Subjec t Matter Jurisdiction Marbur y initially filed suit seekingto enforc e a mone tary judgme nt entere d by

the Fa irfax County Circuit Court in favor of Ma rbury and ag ainst Carl in the amount of $135,324.07, for unpaid leg al fe es and c osts. SeeCompl. As Marbury now ac knowledg es, this Court lacks jurisdiction to enforce state cour t judgments. Atkinson v. Kestell , 954 F. Supp. 14, 15, n. 2

7(D.D.C. 1997) ( “State cour t judgments c annot be r eg istered in this Court.”). While Congre ss has provided that “ a judg ment in an ac tion for re cover y of money

or prope rty

enter ed in any

court of appea ls, district court, bankruptc y court, or in the Court of

International Trade may

be re g istered by filing a cer tified copy

of the judg ment in any

other district,” 28 U .S.C. § 1963, “‘[n] othing in the languag e of se ction 1963 g rants author ity to a district court to re g ister judg ments of any [ot her] courts,’” Atkinson , 954 F. Supp. at 15, n. 2 (quoting Fox Painting Co. v. Nat’l Labor Relati ons Bd. , 16 F.3d 115, 117 ( 6th Cir. 1994)); see also Euro-Am erican Coal Trading, Inc. v Jam es Taylor Mining, Inc. , 431 F. Supp. 2d 705, 707 (E.D. K y . 2006) (“ The Court finds that, in this case, the require ments for subjec t matter jurisdiction are not met beca use the re g istration proce dures se t forth by fede ral statute pr ohibit a fede ral district cour t from re g isteringand subseque ntly enfor cing a state c ourt judg ment in the manner soug ht by

the Complaint.”); W

.S. Frey Co., Inc . v. Precipitation Assocs. of America, I nc. , 899 F. Supp. 1527, 1528 (W.D. Va. 1995) (“the only judgme nts that can be reg istered unde r [28 U.S.C . § 1963] are judg ments from other c ourts of the United States”); Dearborn St. Bldg. Assocs. LLC v. D& T Land Holdi ngs, LL C , Civ. Act. No. 07- 1056, 2008 WL2397660, * 4 (W.D. Mich. J un. 9, 2008) (“ § 1963 does not provide f or the reg istration of a state c ourt judg ment for e x ecution in a f eder al district court” ). Ac cording ly , Marbur y ’s Complaint mustbe dismissed for lac k of subject matter jurisdiction. The Court there fore GRANTS Marbur y ’s [12] Motion to Dism iss its own Complaint pursuant to Rule 12(b)( 1). In so doing, the Court emphasizes that it does not reac h the merits of Mar bury ’s 3

Marbur y ’s Motion identified both Fede ral Rule of Civil Procedure 12(b)( 1) as we ll as 3 Fe dera l Rule of Civil Procedur e 41(a )(2) as base s for dismissal of the Complaint. Bec ause the Court lacks subject matter jurisdiction over this claim, it mustdismiss the Complaint pursuant to Rule 12(b)(1) . The Court there fore has not relied upon Rule 41( a)( 2), which g overns voluntar y dismiss al of a

n action by

the plaintiff without prejudice . In particula r, while Rule 41(a )(2) 8substantive claim for e nforc ement of the Fa irfax County Circuit Court’s monetary judgme nt here in. C. The Court’s Jurisdiction to Ent ertain Carl’s Count erclaim is Not Clear The Court is there fore left with only Carl’s Counterc laim. As noted above , the Counterclaim asse rts state-law claims for br eac h of contra ct, leg al malpra ctice, a nd brea ch of fiduciar y duty

. See ge nerallyCountercl. The Court’s jurisdiction to entertain his state-law claims is unclear on the pre sent rec ord. Althoug h neither pa rty has cha lleng ed the Court’s jurisdiction over Car l’s Counterclaim, “a s a cour t of limit ed jurisdiction, a fe dera l district court has an ‘af firmative oblig ation to ensure tha t it is actingwithin the scope of its jurisdictional authority .’” Nikbin v. Islamic Re

p. of Iran , 471 F. Supp. 2d 53, 58 (D.D .C. 2007) (quoting Grand Lodge of Fraternal Order of Police v . Ashcroft , 185 F. Supp. 2d 9, 13 (D.D .C. 2001)). In this case, Car l has alleg ed that this Court has diversity jurisdiction to entertain the c laims pursuant to 28 U.S.C. § 1332(a) (“The district courts shall have orig inal jurisdiction of all civil actions wher e the matter in controve rsy

exceeds the sum or va lue of $75,000, e x clusive of inter est and c osts, and is betwee n . . . citizens of differ ent States”). Counter cl. ¶ 3. While it appear s from the fa ce of the Countercla im that diversity

of citizenship ex ists, with M arbur y a re sident of the Commonwealth of Vir g inia and Carl a r esident of the D istrict of Columbia, no amount of controver sy is alleg ed in the Counterclaim. See ge nerally id. Indeed, no spe cific da mag es ar e pled a

ny wher e in the Counterclaim. provides that a c omplaint with a pendingcounter claim may be voluntarily

dismiss ed only

if the opposing pa

rty consents or it is shown that “the c ounterc laim can r emain pendingfor independe nt adjudication,” whe re the Court finds — as here — that it lacks subject matter jurisdiction over the c omplaint, dism issal is mandatory reg ardle ss of whethe r the opposingparty consents or the re is an inde pendent ba sis for jurisdiction over the pe nding c ounterc laim. 9It is clear that there is no fe dera l question jurisdiction i n this case. Similarly , beca use the Court lacked or igina l jurisdiction over Plaintiff’s Complaint, italso lacks suppleme ntal jurisdiction over Carl’s state -law c laims. See Sak senasingh v. Sec ’y of Educ

. , 126 F.3d 347, 351 (D.C. Cir. 1997) (“ I f the District Court had or igina l jurisdiction, but di smissed for non-jurisdictional rea sons, then it could maintain supplemental jurisdiction at its dis cre tion. I f it dismiss ed the unde rlying c laim on jurisdictional gr ounds, then it could not ex erc ise supplemental jurisdiction.”). Absent a

showingthat this Court has diversity jurisdiction over Carl’s Counterclaim, his state-la w claims must be dismissed for lac k of subject matter jurisdiction. The Court shall theref

ore H OL D I

N AB EYANCE c onsideration of Ma rbury ’s [13] Motion to Dism iss Carl’s Counterc laim pendingfurther briefingon and re solution of this threshold jurisdictional question. Acc ording ly , the par

ties shall comply

with the followingschedule . First, to the extent Carl continues to maintain that this Court has diversity jurisdiction over his Counterclaim, he must file

a re sponse by

no later tha

n August 31, 2010 , demonstratingthat this Court has diversity jurisdiction to entertain the state- law cla ims asserted in his Countercla im. The Court advises Carl that failure to timely

file a r esponse by

that date sha ll result in dism issal of his Counterclaim without prejudice f

or lac k of subject matter

jurisdiction. Second, Marbur y ’s re sponse on the issue of this Court’s jurisdiction over Carl’s Counterc laim shall be due by no later tha

n Septem ber 17, 2010 . Third and f

inally , Carl’s re ply , if any , shall be due by no later tha

n October1, 2010 . Once such brief ing is c omplete and the Court ha s determined whether it has diversity

jurisdiction over Carl’s cla ims, the Court shall revisit Marbury ’s [13] Motion to Dism iss the Counterclaim in the event it conc ludes diversity jurisdiction ex ists.
10III. CONCLUSION

For the re asons set for

th above, the Court sha ll STR I KE Carl’s [25] Memorandum in Response to Plaintiff’s Reply Memorandum in Support of Motion for Voluntar y Dismissal of Complaint C ourt from the r ecor d in this case. In addition, the Court shall GRANT Carl’s [11] Motion for Reconsider ation and shall there fore VACATE its Dec ember 3, 2009 Memorandum Opinion and Orde r g rantingMarbur y ’s motions to di smiss as concede d and dismissing this case without prejudice. N onetheless, be cause this Court l acks jurisdiction over Plaintiff’s Complaint, the Court shall GRANT Mar bury ’s [12] Motion to Dism iss its own Complaint pursuant to Fede ral Rules of Civil P roce dure 12( b)(1) and ther efor e does not re ach the merits of Mar bury ’s re quest to reg ister the F airfax County Circuit Court’s monetary judgme nt ag ainst Carl. The Court, howe ver, shall HOL D I

N AB EYANCE Mar

bury ’s [13] Motion to Dism iss Carl’s Counterclaim pending further briefingon and re solution of the threshold question of this Court’s jurisdiction over Carl’s state-law claims. Acc ording ly , the par ties shall abide by

the followingschedule : Carl’s re sponse with respec t to the Court’s jurisdiction over his Counterclaim is due by no later tha

n August 31, 2010 ; Marbury ’s re sponse is be due by no later tha

n Septem ber 17, 2010 ; and Carl’s r eply , if any , is due by no later tha

n October1, 2010 . Carl is advised that fa ilure to timely file a r esponse, a s require d, shall result in dismis sal of his Countercla im without prejudice for lack of subject matter jurisdiction. Date: July

27, 2010 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

11